Abstracts
Date | 01 March 1969 |
Published date | 01 March 1969 |
DOI | 10.1177/000486586900200106 |
Abstracts
Balance in
the
Law: The Competing
Claims of
Free
Press
and
Fair
Trial (1968).
Cowen, Z. Med.J.Aust.
ii
1148-1152
THIS article, which reproduces the
Arthur
E. Mills Memorial Oration, considers
the
problem of Press (including T'V
and
radio)
comment prior to trial. The presentation
makes use of a
number
of well-known
cases, e.g.,
the
Kennedy-Oswald events,
Haigh,
Ward
(Profumo-Keeler affair),
and
compares
the
position in the United
States
with
that
pertaining in England and Aus-
tralia. Following the death of Kennedy,
Oswald was subjected to intensive ex-
posure to the American public
and
as a
result the American Bar Association de-
clared
that
what
had
taken place
struck
at
the
heart
of a fundamental
rule of law with its guarantees of a fair
trial for everyone, however heinous
the
crime involved. The widespread
publicizing of Oswald's alleged guilt,
involving
statements
by officials
and
public disclosures of
the
details of
"evidence" would have made it extrem-
ely difficult to empanel an unprejudiced
jury
and afford
the
accused afair trial.
It conceivably could have prevented any
lawful trial of Oswald due to
the
diffi-
cuIty of finding
jurors
who had
not
been prejudiced by these public state-
ments.
Some 50
years
earlier an English judge,
in R v
Crippen,
said
We say
that
we
are
determined while
we
are
here
to do nothing to
substitute
in this
country
trial by newspaper for
trial by
jury
and those who
attempt
to
introduce
that
system into this country,
even in its first beginnings,
must
be
prepared to suffer for it.
Whilst it might seem
that
England
and
the United
States
were
at
one regarding
this problem, this does
not
truly
represent
the
situation as is clearly indicated by a
comment of Mr. Justice Douglas of
the
U.S. Supreme Court:
We have made
our
choice, refusing to
sacrifice freedom of
the
press
to the
whims of judges. We
know
that
judges
as well as editors can be tyrants.
The differences betv.een the English
and
49
United States position is well
set
out
in a
quotation from an American
writer
that
there is
. . . a different balance between
the
conflicting demands of democracy and
privacy, of open hearing
and
fair trial.
Britons tend to
elevate
individual rights
over
social ones, and the
"right
to
know" is more limited than in
the
Unit-
ed States. Though
the
United
States
has
a
written
constitution and Britain does
not, British democracy is in many
ways
the more constitutional of the two
and
America
the
more populist. Americans
tend to emphasize
the
right
and
power
of the "people" and the "public", while
Britons
put
their
faith more in
the
propriety and disinterestedness of
the
machinery of justice and the law.
The
author
makes
the
point
that
the
Constitution is all-important in America
for a free Press
and
that
if a fair
trial
is prejudiced by Press publicity then
the
trial "is rendered nugatory by the pre-
judice which denies due process". He goes
on to point
out
that
in English-Australian
law "we will punish in contempt pro-
ceedings the
person
who publishes
matter
which tends to prejudice the trial. So
the
wrongdoer is imprisoned or fined,
but
once this happens, it seems
that
our
law
loses interest in
the
prejudicial effect of
what
has been published
...
and unlike
American law,
the
English-Australian
law
gives us no
ground
for believing
that
this
(prejudice)
may
lead to the reversal of a
conviction". Finally, the comment is made
that
the whole
matter
was considered in
England by the
Tucker
Committee (Cmnd.
479 of 1958) which made
certain
recom-
mendations
but
the
Government allowed
almost adecade to
pass
before initiating
any of recommendations. The
author
writes: "Little has been done in Austra-
lian jurisdictions; Iargued acase for
the
Tucker Committee recommendations to be
implemented in Victoria,
but
with poor
success."
Organ Transplants (1968). Cowen, Z. Med.
J.Aust.
ii
627-630.
IN Canberra, on April 27th, 1968,
the
annual forum of
the
Australian Post-
graduate Federation in Medicine took
place and
was
entitled "Medical, Moral
and Legal Aspects of Organ Transplanta-
tion and Long-Term Resuscitative Meas-
ures." Cowen's contribution deals
with
the
legal aspects and he comments early
with
regard to the
matter
of death, "There
are
difficult and unresolved legal issues." A
matter
that
concerns
the
author
relates
not only to
the
"moment
of death,"
but
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